Thursday, July 17, 2008

Professor Brake on Discrimination Against Pregnant Athletes

Professor Deborah Brake's article "The Invisible Pregnant Athlete and the Promise of Title IX" in the current issue of the Harvard Journal of Law and Gender examines the legal protection for athletes who become pregnant during their college careers. Until very recently, this issue had been entirely off the radar screen of colleges and universities, OCR, and the NCAA, despite clear regulatory language prohibiting such discrimination. Brake devotes careful attention to the question why discrimination against pregnant athletes -- often experienced as a scholarship revocation rather than medical redshirt status -- was invisible for so long. She attributes this invisibility to socially constructed dissonance invoked by the concept of a "pregnant athlete" which is to say that pregnancy is incompatible with both the competitive (male) model of sport that operates within college athletics as well as notions of physical activity in general. To acknowledge and accommodate pregnancy would, moreover, underscore the presence of women in sporting structures, which were designed by, for, and remain largely controlled by men. Add to this the pervasive stigmas that accompany the pregnancy of unmarried women in general and unmarried women of color in particular, and it's easier to understand why it took 30+ years for anyone (which is to say, ESPN) to begin to pay attention to this issue.

Brake goes on to examine OCR's response to recent attention to the plight of pregnant athletes, embodied in a 2007 policy letter, as an "amalgam" of both equal treatment and special treatment, as well as the likelihood of successful enforcement going forward.